Mahlangu and Another v Firstrand Bank Limited and Others (55279/2021) [2024] ZAGPPHC 1291 (2 December 2024)

Mahlangu and Another v Firstrand Bank Limited and Others (55279/2021) [2024] ZAGPPHC 1291 (2 December 2024)

The court found that the applicants had provided sufficient factual basis in their founding affidavit to support the relief sought in the amended notice of motion, including rescission of the default judgment and related orders. The objections raised by Firstrand Bank, including alleged lack of evidence, res judicata, and procedural irregularities, were not sustainable. The court held that amendments should generally be allowed unless mala fide or causing irremediable prejudice, which was not established here. The court declined to allow duplication of prayers already sought in separate applications, but granted leave to amend Part B of the notice of motion to include rescission and...

Citation
[2024] ZAGPPHC 1291
Parties
Applicant: Mduduzi Sibusiso Mahlangu; Applicant: Sibongile Portia Mahlangu; Respondent: Firstrand Bank Limited; Respondent: Sheriff Johannesburg Central; Respondent: Registrar of Deeds, Johannesburg; Respondent: John Ozaheme Chwuku
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 December 2024
Case Number
55279/2021
Procedural Posture
Leave to Amend / Interlocutory Application for Leave to Amend Notice of Motion in Pending Main Application
Outcome
Leave to amend Part B of the notice of motion is granted in part; specific prayers are substituted and inserted as set out in the order. Procedural directives are issued for further affidavits. Costs are costs in the cause.
Judges
Woodrow
Legal Topics
Amendment of Pleadings, Sale in Execution, Rescission of Judgment, Rule 46a, Default Judgment, Variation of Court Order
Civil Procedure Land and Property Amendment of Pleadings Sale in Execution Rescission of Judgment Rule 46a Default Judgment Variation of Court Order

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Parties

Mduduzi Sibusiso Mahlangu

Applicant

Sibongile Portia Mahlangu

Applicant

Firstrand Bank Limited

Respondent

Sheriff Johannesburg Central

Respondent

Registrar of Deeds, Johannesburg

Respondent

John Ozaheme Chwuku

Respondent

Procedural Posture

Leave to Amend / Interlocutory Application for Leave to Amend Notice of Motion in Pending Main Application

Legal Issues

  1. 1 Whether the applicants should be granted leave to amend Part B of their notice of motion to include prayers for rescission of a court order and related relief.
  2. 2 Whether the objections raised by Firstrand Bank to the proposed amendment are sustainable.
  3. 3 Whether procedural irregularities or prejudice to respondents justify refusal of the amendment.

Ratio Decidendi

The court found that the applicants had provided sufficient factual basis in their founding affidavit to support the relief sought in the amended notice of motion, including rescission of the default judgment and related orders. The objections raised by Firstrand Bank, including alleged lack of evidence, res judicata, and procedural irregularities, were not sustainable. The court held that amendments should generally be allowed unless mala fide or causing irremediable prejudice, which was not established here. The court declined to allow duplication of prayers already sought in separate applications, but granted leave to amend Part B of the notice of motion to include rescission and...

Court Disposition

Leave to amend Part B of the notice of motion is granted in part; specific prayers are substituted and inserted as set out in the order. Procedural directives are issued for further affidavits. Costs are costs in the cause.

Orders

  • Part B of the applicants’ notice of motion dated 3 November 2021 is amended as follows: prayer 7 is substituted to read 'Application for rescission of a court order dated 26 April 2021 is granted.'
  • After prayer 7, the following is inserted: 'The Second Respondent is ordered to refund the Fourth Respondent R5,000.00 paid for the purchase of immovable property held by deed of transfer number ST21004/2017.'